Release of Gencom records would 'impact negotiations’
To release certain records related to Gencom held by the Ministry of Finance headquarters would impact negotiations with the Miami-based investment company and damage the reputations of parties involved, the Financial Secretary has found.
In a decision delivered more than a year after the deadline set for its issue, Chidozie Ofoego denied a public access to information request made by The Royal Gazette in November 2021.
He noted in a letter last week that negotiations continued about the financing deal and development of the Fairmont Southampton — a resort owned by Gencom affiliate Westend Properties Ltd, where the hotel has been shuttered since 2020.
Mr Ofoego added: “This is an extremely sensitive time.
“It is hoped that such negotiations will be concluded shortly and a formal statement to the press being made.”
A government spokeswoman said yesterday that the Ministry of Finance’s position was “accurate and entirely necessary given where things stand”.
She added that multiple law firms on the island and overseas were engaged in the past six weeks to draft and review documents related to the project.
In November 2021, the Gazette sought “copies of all correspondence” between the Minister of Finance related to Gencom — which also owns the Rosewood Bermuda — and its subsidiaries, its founder Karim Alibhai as well as representative Chris Maybury, from July 18, 2017.
Both David Burt, the Premier and then a former finance minister who has since resumed the position, and Curtis Dickinson, who stepped down from the finance post in February 2022, were named.
Correspondence between individuals was requested “whether or not it relates to Gencom activities”.
Deadlines were missed by the ministry headquarters for an initial decision to the request as well as a response to an internal review.
The Gazette sought an independent review by the Information Commissioner, who ordered a decision by April 19, 2022.
The ministry HQ then said the records were exempt on the basis of the Public Access to Information Act’s “commercial information” section.
An independent review of that finding was requested and in a decision issued in May last year, Gitanjali Gutierrez, the Information Commissioner, ordered the finance ministry headquarters to carry out a reasonable search to locate records responsive to the original request and to issue a new initial decision to the Gazette by August 16, 2023.
Ms Gutierrez’s finding said then: “Although Fairmont Southampton is a private company, the Government has been involved with its owners and managers on several issues, such as a Westend Properties guarantee, redundancy payments for its more than 700 hotel employees, and redevelopment-related tax and custom duty rebates and relief.”
Part of the original request was later transferred to the Cabinet Office, for matters related to the Premier, where it was also found that responsive records were exempt — a finding now the subject of independent review by the Information Commissioner.
In his response, Mr Ofoego wrote in a decision letter dated September 5, 2024 that the finance ministry, with support from the Information Commissioner’s Office, conducted an “in-depth search relating to information regarding Gencom”.
He added: “Unfortunately, after careful consideration due to the sensitive nature of the information regarding commercial negotiations, the ability to disclose these documents falls under section 25 (1)(c) of Pati.
“Having considered the public / commercial interest test, I believe that any disclosure of such sensitive and confidential information relating to FSP [Fairmont Southampton Princess] would discredit the Government, significantly impact the negotiations with Gencom and damage the reputation of all parties involved as they would feel that they were unable to communicate and negotiate with the knowledge that information was being handled in a non-confidential manner, eg, there is a risk that Gencom could remove itself from further negotiations because it may not be confident that the Government can keep information confidential.
“If this deal were threatened, this would be to the detriment of the Bermuda public.”
The Act’s section 25 (1)(c) provides that a record is exempt from disclosure if it consists of information that would or could reasonably be expected to have an adverse effect on the commercial interests of anyone to whom the information relates, if it was released.
Mr Ofoego noted that the closure of hotel had “impacted Bermuda significantly from an ‘access to available beds’ perspective” because, he wrote, the resort had about 50 per cent of the total hotel beds for the island.
He added: “The closure of FSP has impacted air travel and as a knock on the local economy.
“FSP is a main conference hotel on the island and the closure of FSP has meant longstanding conferences have had to find alternative venues off island, again impacting the local economy.”
The Ministry of Finance headquarters was ordered, in a decision issued by the Information Commissioner in May 2023, to conduct a reasonable search to locate records responsive to a public access to information request made by The Royal Gazette in November 2021.
It was also instructed to issue a new initial decision on the request, with both actions to be completed by August 16, 2023.
The ministry transferred part of the request and the decision for the remainder was dated and received by the Gazette on September 5, 2024, after which the Information Commissioner was asked for comment about her office’s processes when public authorities fail to comply before a set deadline.
Gitanjali Gutierrez replied yesterday: “The Information Commissioner’s Office takes a progressive approach to enforcement of the Information Commissioner’s decisions and balances several factors when considering the final step of judicial enforcement, such as a contempt of court action.
“The ICO’s overriding concern is to take the most effective approach to getting records disclosed that the public is entitled to see.
“This is also balanced with the ICO’s very limited budget and the cost to the public of any court proceeding.”
She explained: “Generally, if a public authority intends to comply with an order to search for additional records or to disclose a record, the ICO will work with the public authority and the requester for this to happen.
“If additional time is allowed, the ICO strives to keep communication open between itself, the public authority and the requester.
“While this may take longer, the ICO recognises the resource limitations and other challenges faced by some public authorities.
“Often in these circumstances, initiating legal proceedings will only result in further delay and expense, in a situation where the public authority is trying to comply with the decision as best it can.
“It is also important to say that the ICO takes other steps to encourage public authorities to improve their Pati practices [records management, Pati training, and resource allocation] and to inform the public when public authorities are falling short in these areas.
“If a public authority’s efforts to comply with a decision slow down too much or if a public authority stops responding to the ICO entirely, the Information Commissioner’s counsel will send a formal letter before action notifying the head of the authority that contempt proceedings will be filed if the public authority does not promptly comply with the order.
“The ICO incurs the expense of legal fees when this is done, but to date, once a letter before action is sent, the public authorities have complied with the decisions.”
Ms Gutierrez added: “In the end, each situation will be different depending on what the Information Commissioner’s decision requires, the position of the public authority and its resources, the requester’s position, the nature of the records and Pati request, and the most effective approach to getting the records disclosed or located.
“The Information Commissioner will determine the best approach, prioritising the public’s right to access public records and maintaining good stewardship of the ICO’s very limited budget.”
In a letter e-mailed to the Gazette on Friday, a senior investigation officer at the ICO said that 155 responsive records were identified after the finance ministry HQ worked closely with the ICO to locate them.
It was also noted that the decision provided by the ministry headquarters last week meant that the Information Commissioner was satisfied that the public authority met the requirements of the decision notice and its accompanying order “out of time”.
A request by the Gazette for internal review of the finance ministry HQ’s decision has been referred to the Information Commissioner because Mr Ofoego is the head of the public authority — the office holder who would carry out an internal review.
The government spokeswoman said yesterday: “This is one of the most complex and significant transactions in which the Government of Bermuda has played a part.
“The past six weeks have seen multiple local and overseas law firms engaged in the extensive drafting and review of the numerous agreements and other documents required to support this $500 million transaction.”
The Government was also asked on Friday about its commitment to provide a guarantee of up to $75 million for the Fairmont Southampton project, as well as the progress of a special development order that would pave the way for a maximum of 250 tourism and residential units at the resort, for which the Minister of Home Affairs announced his approval last October.
Legislators must be informed “as soon as practicable” after a guarantee is executed, in line with the Government Loans Act.
Vance Campbell said in June, when he was Minister for the Cabinet Office, that when all matters “pertaining to the overarching transaction that governs the project have been completed, the SDO will be brought into force”.
The government spokeswoman confirmed yesterday that the position was unchanged and said that “in accordance with the applicable law, the Legislature will be informed as required and the SDO brought into force as previously indicated”.
She added: “The Government’s commitment to playing its part in the site’s redevelopment is driven by the immense economic prospects represented for the people of Bermuda both during construction and once open as a fully operating hotel.”
Westend Properties said in June that work at the property continued although initial work at a staff housing site revealed the need to replace critical infrastructure.
The company added then: “This key first phase of delivering staff housing for use during the main hotel building renovation is therefore taking slightly longer than anticipated.”
Gencom and Westend Properties were asked on Friday about the continuing negotiations as well as for any update on the SDO or other works.
A spokeswoman for Westend Properties said on Saturday that the company would be “providing a significant update sometime next week”.
• To see the Financial Secretary’s letter as well as the Information Commissioner’s decisions referenced in this article, see Related Media
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